K.L. v Judge Ní Chondúin
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 09 October 2015 |
| Neutral Citation | [2015] IEHC 617 |
| Court | High Court |
| Date | 09 October 2015 |
[2015] IEHC 617
THE HIGH COURT
BETWEEN
AND
AND
Family – Family Law (Maintenance of Spouses and Children) Act 1976 – Family Law Act 1995 – Award of maintenance – Judicial review – Reasoned decisions – Denial of fair procedure
Facts: The applicant sought an order for quashing the order for maintenance made by the District Court whereby the applicant was directed to pay maintenance to his wife and two children. The applicant alleged that the impugned order was made in violation of fair procedures without giving adequate explanation for the basis of the decision.
Ms. Justice Baker granted an order for quashing the order of the District Judge for maintenance of the children. The Court, however, upheld the order of spousal maintenance granted by the District Judge. The Court held that the order granting the maintenance of children who had attained the age of majority and were not receiving higher education was made without taking appropriate evidence on record. The Court held that while the applicant was entitled to know the basis of the reason for granting maintenance of his wife, no injustice was caused to the applicant as he was aware of the approach of the Court in calculating an appropriate figure at a lowest possible level, namely, the amount payable to an individual under the social welfare code. The Court observed that the jurisdiction of the District Court and Circuit Court to grant maintenance is concurrent and the District Court did not err in law by deciding the application of maintenance of wife pending husband's application in Circuit Court for judicial separation as it was filed after the summons for maintenance application had been issued and the wife had not delivered a defence or counterclaim in those proceedings.
1. The applicant and the notice party are married but live apart and for convenience I will refer to the parties as the husband and the wife respectively. This application arises out of a maintenance application brought by the wife against the husband in respect of herself and the two children of the marriage.
2. The husband seeks to quash an order for maintenance made by the District Judge on the 13 th May, 2015 by which she directed, by way of interim order, that the husband would pay to the wife maintenance in respect of herself and the two children of the marriage, two boys then aged 20 and 22 years of age, both of whom are stated by the wife to be in full-time education, and thus dependant within the Family Law (Maintenance of Spouses and Children) Act 1976 (the "Act of 1976").
3. The husband does not deny that his wife is entitled to maintenance, nor does he complain that the amount awarded was beyond his ability to pay. His seeks to quash the District Judge's order on the basis that it was made in the absence of fair procedure, and because he alleges the District Judge failed to employ natural and constitutional justice in the way in which she conducted the hearing and came to her decision.
4. Noonan J. made an order on 8 th June, 2015 directing by consent that there be a telescoped hearing of the applicant's application for leave and of the substantive judicial review.
5. The husband claims that he was denied natural and constitutional justice in the conduct of the hearing, that the District Judge displayed bias towards him, that she truncated the hearing and refused to permit him to cross-examine his wife, refused to permit his solicitor to complete her submission, that she made various interjections in the course of the hearing, and that she failed to state reasons for her decision. By way of a separate application it is contended that the District Judge erred in law in coming to a determination that the two children of the marriage were dependant within the meaning of the code. Finally, it is claimed the District Judge erred in determining the matter when there were in being, at the date of the hearing, Circuit Court proceedings for judicial separation and ancillary relief pursuant to the Family Law Act 1995 and commenced by the husband.
6. The wife denies that there was any absence of fair procedure, says that there was adequate evidence before the trial judge on which she could make a determination that the children were dependent within the meaning of the legislation, and that the judicial separation proceedings did not commence until after the District Court application was filed and served, and do not preclude the exercise by the District Judge of her jurisdiction under the Act.
7. I will deal with each of the heads of claim individually.
8. An unfortunate element of the application is that the DAR recording for the hearing in question was not available despite attempts to obtain this through the relevant District Court Office. Five affidavits have been filed, an affidavit and a supplemental affidavit of Susan Martin, solicitor for the applicant, and a replying affidavit and supplemental affidavit of Amy Murphy, solicitor for the wife. The husband did not swear an affidavit but there is a lengthy affidavit of the wife. However, counsel do not disagree significantly as to the course of the hearing.
9. From the affidavit evidence, the following appears: A maintenance summons was issued by the wife without the benefit of legal representation on the 22 nd April, 2015 returnable for the 13 th May, 2015 at Cork District Court, by which she sought maintenance for herself and the two children identified by their respective dates of birth. The children were born in 1992 and 1995 respectively, and both continue to reside with their mother at the former family home. The husband denies that the children are dependant, and says neither is in full-time education.
10. Prior to the issue of the summons, correspondence had been sent to the wife by the husband's solicitor, which indicated that he intended to seek an order for judicial separation. The wife asked to be given time to obtain legal aid, and hoped in those circumstances that her husband would stay his hand as she was unable to afford private legal representation. The judicial separation proceedings did issue on the 29 th April, 2015 in the Cork Circuit Court and bear record no. 253/2015. The maintenance summons thus was issued one week before the judicial separation proceedings.
11. There is some difference between the parties as to precisely what occurred in the District Court but certain matters are not in contention. The District Judge heard limited oral evidence, and the only evidence on oath was given by each of the parties to confirm the contents of their respective statement of means filed for the purposes of the application for maintenance. No cross-examination was had of either deponent, and the husband says that through his solicitor he sought an opportunity to cross-examine his wife but that none was permitted.
12. It was evident that the sole income of the family was the income of the husband, and that the wife had been during the currency of the marriage entirely dependent on him for her financial needs and that she had ceased working after the marriage due to suffering a serious illness. Both parties accept that the District Judge asked each of their legal representatives to state their positions with regard to an appropriate figure for maintenance, although they disagree as to whether the figures now identified were those identified to her. Both parties are agreed that the District Judge took as her baseline or guide the amount that a single person would obtain from the Department of Social Welfare in respect of unemployment assistance, the sum of €188.00 per week, and that this was the figure she awarded to the wife. Both parties agree that the matter was adjourned to the 2 nd November, 2015 and that the order was an interim order until that date. Both parties also agree, although with some differences of emphasis, that the wife had sought, but had not yet received, the benefit of legal aid in respect of her application, and that it was anticipated that legal aid would be available to her by the adjourned date. The wife issued the summons for maintenance as a litigant in person but was allocated a solicitor under the private practitioner scheme on an emergency basis to deal with the hearing on 13 th May, 2015.
13. What is in dispute between the parties, however, is that the husband's solicitor says on affidavit that the District Judge described the process of calculating an appropriate figure in respect of maintenance as containing an element of "Russian roulette", and that she said to some extent calculating a figure was akin to "putt[ing] her finger in the air and pluck[ing] a number from it". The solicitor for the wife denied that comment was made specifically, and says that whilst the District Judge did make some comment of that nature that her comment was by reference to the task in a general sense and not the task of assessing the correct figure for maintenance in the case before her.
14. What is also in contention between the parties is whether the District Judge had any evidence before her with regard to the claim that the two children of the marriage were dependent. The older son will be 23 in October 2015, and irrespective of whether he is then in full-time education he will cease to be dependent within the meaning of the legislation once he reaches that age. It also seems that submissions were made to the District Judge by the solicitor for the wife to the effect that the older son of the marriage had taken a break from his college education due to suffering a degree of anxiety but he...
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L.M. v A Judge of the District Court
...of Lynch J. in A. M. v. District Judge Harnett (Unreported, High Court, 6 July 1993), and my judgment in K. L. v. Judge Ní Chondúin [2015] IEHC 617, there may have been some jurisdictional difficulty with the Circuit Court proceeding to hear an application other than by way of appeal from a......